I. The Rule of Law
1. What is the general meaning of the "Rule of Law"? Is it applicable to the Hong Kong Legal System?
The rule of law begins with the right of individuals to seek protection through the courts in which justice is administered by unbiased judges. It protects the freedom of individuals to manage their affairs without fear of arbitrary interference by the Government or the improper influence from the rich and powerful.
The rule of law governs the way in which power is exercised in Hong Kong. Its principal meaning is that the power of the Government and all government servants shall be derived from law as expressed in legislation and the judicial decisions made by independent courts. No one, including the Chief Executive, can commit an act which would otherwise constitute a legal wrong or affect a person's liberty unless that person can point to a legal justification for that action. If a legal justification for the action cannot be found, the affected person can resort to a court which may rule that the act is invalid and of no legal effect. Compensation may be ordered in the affected person's favour. This aspect of the rule of law is referred to as the principle of legality.
One corollary of the principle of legality can be summarised as equality before the law. It is fundamental that all persons, regardless of their race, rank, politics or religion, are equally subject to the laws of the land. Further, the rule of law requires that the courts are independent of the Government Executive bodies. This independence is crucial if impartial rulings are to be given in judging the legality of the acts carried out by the Government.
The Basic Law ensures that the legal system in the HKSAR will continue to give effect to the rule of law by providing that the laws previously in force in Hong Kong shall be maintained, save for any that contravene the Basic Law and subject to any subsequent amendment by the HKSAR Legislature.